While in many cases it serves as a stabilizing factor in the international system, and can even be called a force for good, international law cannot be considered “law” when applied to states or state action. To be considered “law” these principles and decisions require enforcement mechanisms that go beyond state consent or the trust and goodwill among parties to a treaty. Law must also create a true obligation rather than serve as a convenient means to an end as it does for most states in the current system.

As it stands now, states’ obligations are outlined in treaties and customs, but enforcement relies on vague clauses and empty threats found within the documents, or in international bodies like the UN Security Council (UNSC) where power asymmetries grant the more powerful states significant influence. Consent is very important, but international law’s status as “law” cannot rest on consent alone. As rational, unitary actors, states make decisions that are in their best interests, and more often than not, consenting to various conventions and treaties is in a state’s interest, but that consent can be rescinded as soon as the state’s priorities change or a better option appears. When considering the sources of international law, one finds that general principles are usually shifting and too vague to form the basis of an international legal system; customary law is based on state practice and opinio juris which can be mistakenly ascribed to a state merely taking a course of action because it is convenient for the time being; and treaties are only enforceable so long as one party or group of parties is strong enough to impose compliance on another. Examples of the latter can be found during the decades when Cold War rivalries held the UNSC hostage. It is at times like these when the system more closely resembles a political protection racket than an international legal regime.

This paper examines what constitutes law and why enforcement is necessary. Attention is also be given to the concept of opinio juris and how it is much more difficult to demonstrate than proponents of international law admit. Second, this paper examines how the current state of international law cannot be considered “law” using various examples, but paying particular attention to the failures of the United Nations Convention Against Torture (CAT) and the actions of the United States regarding enhanced interrogation post-9/11. The final section discusses why this distinction matters, what its implications are, and where the international system can go from here.

What Is a Law?

If international law were to be boiled down to two keywords, we would be left with consent and sovereignty. Under this system, states are free to act as they wish in domestic matters and pursue their interests internationally. Limits on sovereignty must be consented to by states when signing treaties or joining international legal conventions; however, this consent can always be rescinded and there are few if any mechanisms in existence that can compel a state to act or keep an obligation. By Austin’s broadest definition, law is “a rule laid down for the guidance of an intelligent being by an intelligent being having power over him.”1 Laws, as they are usually conceived, are “established by political superiors”2 and imposed on those over whom the superior has the authority to enforce them. In these situations, the superior creates a command through his/her willingness to harm a violator in the case of noncompliance.3 Without this credible threat, a law is not a command, but merely an articulation of a wish or desire.4 Since state actors are all independent, equal players on the international stage without any higher power governing their actions, there exists no political superior to posit or enforce international law. As this is the case, international law falls into the category of law not established by political superiors that Austin describes as “mere opinion” rather than law.5 These constitute the combined opinions of how those in the international community would like to see the world governed. Documents like the Declaration of Human Rights and organizations such as the International Criminal Court are highly aspirational and idealistic, but are subject to state consent and are flouted quite frequently. These examples represent a desire, “but where there is not a purpose of enforcing compliance with the desire, the expression of a desire is not a command”6 and as such cannot be considered law. These “imperfect laws,”7 lacking enforcement and obligation, serve more as counsel and guidelines than as binding law.

This distinction is more easily accepted with a clearer understanding of what motivates compliance with international law. The reason “almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time”8 is not because states feel obliged to under the law, but because the systems and benefits created by the “laws” are favorable. States reap immeasurable economic and security benefits from the relatively peaceful borders, global trade, and open air and sea navigation that the international legal regime provides; and they will continue to follow its tenets so long as they cannot find a greater opportunity outside the system. International law was born from the practice of “states pursuing their interests to achieve mutually beneficial outcomes”9 and it survives only “to the degree to which it continues to serve those interests.”10 Through this lens, international law can be examined from the perspective of the domestic interests of states and how these dictate international law rather than vice-versa. The WTO stands as an example “of an institution that is best understood as resolving bilateral disputes between states”11 and the UN helps to coordinate cooperation between the states. However when the UN tries to impose other restrictions such as the charter’s obligation regarding the use of force, they are easily sidestepped or outright ignored with few, if any consequences, and absolutely none for the great powers. This system places countries such as the P-5 in the UNSC or the United States in the IMF above the laws of the system, and unless all are subject to it equally, international law cannot be considered law.

Some believe that opinio juris is what drives consent and gives international law its legitimacy, but this sense of obligation “cannot itself be explained.”12 In the landmark 1996 case regarding the legality of the use of nuclear weapons, the court found itself “profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris.”13 If 50 years of unanimous precedent could not be considered opinio juris, then how can compliance with international law that has tangible benefits be considered evidence of an obligation? From this point of view, “international law does not pull states toward compliance contrary to their interests”14 but changes as their interests change. For international law to be “law” states must be, as Kennan hypothesized, “like our own, reasonably content with their international borders and status;”15 for if they are not, they will disregard whatever legal regime is in place and pursue their ends as they see fit.

Pulling Back the Curtain: The Darker Side of International Law

International law reaches every aspect of life in the international system from trade and navigation to warfare and torture. Heralded by many as the harbinger of a new age of cooperation in international humanitarian law, the United Nations Convention Against Torture presents an interesting case study for why international law is not law at all. Adopted by the UNGA in 1984 and entering effect in 1987 the CAT is certainly a revolutionary document. While Article 2 calls for signatories to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”16 and Article 4 requires signatories to make torture illegal within their domestic systems,17 Article 5 establishes universal jurisdiction by allowing any state to take “such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction.”18 It is this element of enforcement that gives the CAT its claws.

At first glance, one would think that the CAT represents a success for humanitarian law and establishes that international law can truly hold the force of law, but recent studies have surprisingly found that “some countries that enter into the CAT subsequently experience higher levels of torture than countries that do not ratify the convention.”19 Eric Niemeyer’s work found that the experiences of democracies and dictatorships under the CAT are qualitatively different.20 The question quickly becomes: Why? The answer lies in why these states are signing the CAT to begin with and what goals they are hoping to achieve. While some would argue that the CAT forces states to cede some of their sovereignty through its universal jurisdiction, that very same threat seems to be what is motivating these dictatorships to join the CAT knowing they will violate the treaty. Strong dictatorships that torture can use the CAT to send a credible signal of their resolve to stay in power to their constituents.21 After signing, a dictator is subject to arrest outside of his country if he continues to torture. With his hands tied, the only way the dictator can avoid imprisonment is to remain in power; as such, he will continue torturing his citizens and crushing all pockets of dissent to ensure he will avoid his ouster for as long as possible.22

In the above theoretical, signing the CAT is not meant to signal an affirmation of human rights to the international community, but is instead meant to signal, to a domestic audience, the leader’s resolve to remain in power by any means necessary. Before signing the CAT, Cote d’Ivoire “had but a few isolated incidences of torture from 1985 to 1989;”23 however the human rights watchdog CIRI reported frequent levels of torture in 1995, the same year Cote d’Ivoire signed and ratified the CAT.24 Similar trends can be seen in Mexico and Egypt. Entering the CAT under such circumstances demonstrates a disregard for the mission of human rights protection and a complete lack of opinio juris on the part of such signatories. These dictatorships are not ceding their sovereignty, but using the CAT to achieve their own ends which are in and of themselves completely antithetical to the goals of the convention.

The fact that this manipulation is possible without any punishments or reprisals; that with 147 parties (as of 2010) torture is still well documented and widespread; that the arrest of Augusto Pinochet under the CAT’s universal jurisdiction came to naught; and that countries like China are allowed to torture their own dissidents and support the regimes of high-profile human rights abusers such as Robert Mugabe in Zimbabwe because of political clout, economic strength, and a UNSC veto,25 signal not only weaknesses in the CAT and international humanitarian law, but call into question whether or not such conventions can be considered law under the world’s current circumstances. The CAT and other attempts like it to create binding principles of international law are, at this point, aspirational guidelines. Even when an explicit attempt to create a universal enforcement mechanism was made, the convention fell short of its goal of actually affecting state action. While supporters may point to international norms or the promise of legitimacy creating pressure to join and obey the CAT, these factors are little more than negative externalities that can be dealt with either through explicit or backroom politicking. In cases such as these, international law may have a great deal of moral legitimacy, but the ability of states to disregard it in pursuit of their own interests demonstrates international law to be a guideline rather than true “law.”

Turning to the actions of the United States in the period after the attacks of September 11th, one sees a marked shift in the administration’s stance on international law. During the conflicts in Afghanistan and Iraq, the Bush administration sought to delegitimize Al Qaeda and Iraqi insurgents’ claims to Geneva Convention protections once captured, and to defend the administration’s policies of enhanced interrogations. Before continuing, it is important to remember that the United States had a leading role in the authorship of the Geneva Conventions and the institutions that emerged after WWII. As such, the United States had a great deal of influence in the framing and guiding of the Geneva Conventions and is well acquainted with the true intent behind tenets such as Common Article 3 which states that “certain minimum rules of war apply to armed conflicts that are not of an international character”26 and Common Article 2 which states that “the Geneva Conventions apply to all cases of international conflict, where at least one of the warring nations have ratified the Conventions.”27

In spite of these requirements of the Geneva Conventions, the Bush administration used legal arguments regarding Al Qaeda’s noncompliance with the Laws of War, the insurgents’ ambiguous status as non-state actors under Common Article 3, and the voluntary nature of many of the United States’ obligations to justify the annulment of Geneva protections for those captured. While this does not disprove international law’s claim to be “law,” it does reveal a troubling sentiment within the administration. As John Yoo said “the primary enforcer of the laws of war has been reciprocal treatment: We obey the Geneva Conventions because our opponent does the same with American POWs.”28 This does not demonstrate a feeling of obligation under the law or even a belief in the conventions’ legitimacy; it is in fact closer to a Mexican standoff and a perfect example of the Prisoners’ Dilemma that the Conventions were designed to solve. If the United States as guide, author, and defender of the Geneva Conventions does not believe they carry their own obligation outside of reciprocity, then their legitimacy as law is unquestionably shaken.

As time went on, the United States began to flout its obligations under the Conventions in order to achieve its own ends. Having successfully stripped those captured in the War on Terror of POW status, the administration had to address its obligations under the Geneva Conventions and the CAT, which forbade torture. In keeping with these obligations, US domestic law prohibits “any person outside the United States [from] committing or attempting to commit torture”29 under 18 USC 2340A. With swiftness and precision, this international obligation was loosened, as the United States unilaterally changed its interpretation of torture under domestic law. After consulting with the Office of Legal Council, to qualify as torture, severe physical pain as stated under the statute, would need to “rise to the level of death, organ failure, or the permanent impairment of a significant body function.”30 Short of damaging an organ system, nothing that interrogators would do to detainees counted as torture under the new interpretations. The same went for psychological damage. To be torture, the psychological damage needed to be “severe” and had to last for “months or even years.”31 Through these unilateral redefinitions of torture, the United States was able to get around the Geneva Conventions, CAT, and other treaties in order to ensure it met its goal of “preserving flexibility”32 in fighting the War on Terror. The state held this goal so dear that it went out of its way to diminish the influence of the Geneva Conventions and even went so far as to declare that the “new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions."33Continued on Next Page »

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